NOT DESIGNATED FOR PUBLICATION
No. 128,223
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANTOINE MOLIERE,
Appellant.
MEMORANDUM OPINION
Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Oral argument held July 22, 2026.
Opinion filed August 21, 2026. Affirmed.
Jacob Nowak, of Kansas Appellate Defender Office, for appellant.
Ashley McGee, assistant county attorney, and Carissa Brinker, senior assistant county attorney, Amy L. Aranda, county attorney, and Kris. W. Kobach, attorney general, for appellee.
Before BOLTON FLEMING, P.J., HILL and GARDNER, JJ.
PER CURIAM: Antoine Moliere was convicted by a jury of the rape of a young child. On appeal, Moliere raises three issues. First, he alleges that the district court erred by allowing a support person, the mother of the victim, to sit nearby while the victim testified. Second, Moliere argues that his right to due process was violated when the State failed to correct the perjured testimony of the victim's brother. Finally, Moliere alleges that cumulative error denied him a fair trial.
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After a thorough review of the record, we first find that the district court did not abuse its discretion by allowing a support person to be seated near the victim while she testified. Second, we do not reach the merits of whether the State had an obligation to correct perjured testimony because that issue was not properly preserved. Finally, because there was no error, we need not consider Moliere's argument that cumulative error denied him a fair trial. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Antoine Moliere was convicted by a jury of the crime of rape. The victim of Moliere's crime was Jane (pseudonym), a minor child.
Prior to trial, the State filed a motion to allow a support person and comfort item for two child witnesses: the victim—Jane, age 6, and her brother, John (pseudonym), age 7. The State proposed that the mother of the children, Mary (pseudonym), serve as the support person for both children. The State offered that Mary could sit out of the view of the children but nearby so that the children would feel comfortable testifying. Moliere objected to the request for a support person, contending Jane's statements during the investigation of the crime had been coached by Mary. After a pretrial hearing, the district court granted the State's motion with the caveat that the "[s]upport person is not to speak to the child witness, attempt to disrupt or influence the child in any way, support person is not to make any inappropriate actions or respond to any questions or answers."
By the time the trial started, the State had determined John could testify without a support person nearby but maintained that Jane would not be able to testify without one. Before the State called its first witness, Moliere renewed his objection to Mary serving as a support person for Jane, alleging her presence "could very likely influence the validity of [Jane's] testimony." After considering the arguments of counsel and inquiring about
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Jane's age, the trial court judge overruled Moliere's objection and allowed Mary to serve as a support person for Jane.
The State called John as its first witness. John testified that he "[u]sed to" have a dad named "Tony." John described a night when his mom was at work and he, Jane, and Tony were watching a movie in his mommy and daddy's bedroom. He recalled that Tony paused the movie and pushed John out of the bedroom into the living room. John explained to Tony that he wanted to stay in the room because the movie was at his favorite part, but Tony would not let him. John testified that Tony had shut the bedroom door, but John stated he could see through a crack. John explained that he looked through the crack because he wanted to see what Tony and Jane were doing. John testified that when he looked through the crack, Jane had her shirt on but not her pants and Tony had his pants and underwear on. John described that Jane and Tony were lying on the bed with Jane on her back, on top of Tony, and their private parts were close together. John testified that he kept what had happened a secret for a while but then told his mom.
John testified that after "a couple of hours, I just opened [the door]. And while he wasn't looking, he was just laying down looking up at the ceiling, I grabbed the remote and unpaused it." He said he knew Tony and Jane were done because "both of them put their clothes back on and sister when off of Tony, so then I just—so that's how I knowed [sic]".
Initially, John did not remember talking to anyone but his mother about what he had seen but eventually recalled talking with a therapist named "Ms. Jennifer" at Crosswinds Counseling & Wellness. John stated he told Ms. Jennifer the truth and was also telling the truth at trial.
On cross-examination, John said his mommy helped him remember the things he had forgotten. John testified:
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"Q. Okay. Has anybody told you what to say? "A. My mom did, but I forgot what she telled [sic] me what to say. "Q. Okay. Did she tell you to say about the bad things? "A. Yes. "Q. Did she tell you what happened? "A. No. "Q. When she told you to tell about the bad things, did she tell you that you need to tell about the bad things? "A. Yes, but, but I can't because I forgot."
On redirect-examination, John started to talk about a pretend drone that he owned and that he could scan items. Later in recross-examination, John talked about being half- human and half-robot. We will discuss these facts in greater detail in the relevant portion of this opinion.
The State also called Jane as a witness. Jane testified in childlike terms that a bad thing happened to her and that her dad did it. Jane testified that she was watching television in her mommy's bedroom with her brother and her dad. She described that later she was lying on the bed, and her daddy took her clothes off. She stated, "[H]e was halfway on me and halfway off me" on top of her, on the bed.
Jane testified that she told her mommy the truth about "the bad thing." She did not remember telling anyone else about what had happened. Jane testified that it was embarrassing, and she could not recall the names of private parts. She agreed swimsuits cover private parts and that her private parts were below the belly button but above her knee. Jane testified that only her mother is allowed to touch her private parts.
On cross-examination, Jane agreed that her dad's clothes were on but also said that he had touched her private parts. Defense counsel asked Jane if she could remember when this happened and she could not say. Jane recalled that her dad touched her private
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parts but could not explain how. She testified that her daddy's clothes were on but hers were half off. Defense counsel asked:
"Q. You told Ms. Carissa that mommy can touch your private parts, right? "A. Okay. "Q. And you said daddy did? "A. My mom can touch my private parts, but my dad can't touch my private parts, but he done it anyway. "Q. He done it anyway. Can you tell us how? "A. Uh . . . "Q. You're trying to remember or you just don't want to answer? "A. I forget stuff all the time."
On redirect-examination, the prosecutor asked:
"Q. Okay. What—did daddy touch your private parts different than mommy does? "A. Uh, yeah. "Q. Okay. How did he touch it differently? "A. My dad— "Q. Did he touch it with his hand or something else? "A. Something else. "Q. Okay. Are—do you have a name for your private parts? "A. I don’t know. "Q. Okay. Do you know a name for a girls' private parts? "A. No. "Q. No. Do you know a name for the boys' private parts? "A. No. "Q. Do you know if they have same name or different names? "A. Different names. "Q. Okay. When the bad thing happened, could you see daddy's private parts? "A. Yeah. "Q. Okay. When you said your pants were halfway off, were they on both knees or one knee?
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"A. Both knees. "Q. Okay. Did this happen more than once? "A. Um, only one time."
Jane was asked again and said her daddy's clothes were on and his private part was by her feet, close to her private part.
The State also called Mary, Jane and John's mother and Molier's wife, as a witness. Mary testified that she lived with Jane, John, and Moliere. At the time of the incident, Mary was working night shifts as a CNA, and when she came home after work, Jane was either in her own bed or in bed with Moliere. Mary recalled that John would sleep on the couch or upstairs in his room.
Mary testified that she was getting ready for work one day when Jane told her that her daddy "was going to put his wee wee in her coochie again." Mary explained that those are the words Jane used for private parts. Mary took the children to her mother's home after Jane's statement. Mary recalled that she and Moliere were arguing at the time but were not discussing separation.
The State also called Zoey (pseudonym), Mary's child and half-sibling to Jane and John, as a witness. Zoey testified that she lived with her mother and family for a short time. She recalled that Moliere and Jane were always together. Zoey gave the example that if Moliere was in his bedroom watching television, so was Jane, because Moliere would ask Jane to come join him. Zoey testified that Mary had told her about Jane's allegation against Moliere. Zoey described that Mary was very emotional and was trying to determine what to do.
Zoey also had a direct conversation with Jane about what happened. Not long after the incident, Zoey took some children, including Jane and John, to a lake. When trying to
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get Jane to change into dry clothes, Zoey told Jane something like "Sissy, get naked, we have to get dressed." Zoey recalled that Jane turned, looked at her and replied, "My daddy put his coochie [sic] in my wee wee [sic]." Zoey told Jane, "We're not gonna talk about it right now." Zoey did not discuss the incident with Jane again.
Jane's maternal grandmother, Carol (pseudonym), also testified. Carol recalled that her daughter, Mary, dropped Jane and John off with her, and said not to let Moliere have the kids until she knew what was going on. Carol testified that Mary said she couldn't tell her what was going on but needed to take Jane to a doctor. Carol noted that the kids stayed with her for a couple of weeks and, while sitting at the table one day, Jane said she thought she had done something wrong. Jane told Carol, "My daddy put his wee wee in my coochie." Jane began crying, and Carol assured her that she hadn't done anything wrong. Later that day, Jane told Carol, "[M]aybe daddy didn't do it." Still later, Jane told Carol, "Yes, my daddy did do it." Carol also testified that she had used the word "coochie" with Jane to talk about her private parts.
The State also called Kayla Delgado, a victim specialist for the Lyon County Attorney's Office, as a witness. Delgado testified that she conducted a videotaped, forensic interview with Jane at the local Child Advocacy Center. Delgado explained that she closely examines a child's responses during the interview to determine whether she believes a child has been coached. She stated that often, when a child has been coached, there will be a lack of consistency, detail, and spontaneity in their responses.
When Delgado met with Jane to conduct her interview, Jane "curled up in a ball in the chair with her head down and hair over her face." Jane did not speak for around nine minutes. As the interview progressed, Delgado provided anatomical drawings and walked through the body parts with Jane. Jane labeled her private parts as her "coochie" and, for the boy, a "wee wee." During the interview, Jane told Delgado that "Daddy put his wee wee in my coochie." Jane also told Delgado that her daddy took off her clothes and that
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his hand was always inside. Delgado testified that the manner of Jane's interview and her answers were typical for her age.
Delgado also conducted a forensic interview with John. Delgado noted that John was very hyper, had difficulty sitting, and was running around the room. Delgado recalled that initially John didn't want to tell her what had happened, "but he eventually started to talk to me and tell me what he had seen. And while he continued to climb on things and run around the room, we had a conversation about what he had seen and what he had told his case manager and mom."
Delgado reviewed the anatomical diagrams with John. He told Delgado that "Daddy stuck his wee wee in sissy's coochie." John told Delgado that the bedroom "door shuts all the way, but there's a crack that you can see everything in there." John told Delgado that "she was laying down and daddy was on top."
Bridget Camien, a SANE/SART nurse, testified about the examination she performed on Jane to look for evidence of sexual assault. As part of that process, Camien asked Jane if she was feeling uncomfortable or if anything inappropriate had happened to her. Jane mentioned something about her father, but Camien couldn't understand what Jane said. Camien then specifically asked Jane about her father. Jane replied, "They took him away for no reason and he didn't do anything." Camien testified that Jane "was very upset and that was the end of it." Camien did not find evidence of sexual trauma during Jane's physical exam. She explained that lack of evidence of injury or scarring does not mean there was not penetration or a sexual assault.
Jennifer Williams, of Crosswinds Counseling & Wellness, testified about her work as a therapist for both Jane and John. Williams began working with Jane as a result of Jane's allegations that she had been sexually abused by Moliere. Mary brought Jane to all
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but one session, and Williams would typically visit with Mary at the beginning of the session and then meet with Jane alone.
Williams testified that Jane was confused because Jane did not understand that what her dad did was wrong. As a result, Jane was also confused by the reactions of others and the fact Jane was no longer allowed to see Moliere.
During the intake process, Mary reported to Williams that Jane "was somewhat consistent with her initial disclosure; she had not changed her initial disclosure statement." But Mary also alerted Williams that Jane had made statements that Moliere didn't do anything and had expressed confusion. Mary also told Williams that two neighbor girls had talked to Jane and John about how babies were made. Mary also found naked pictures of Jane and John on their Vtech tablet and phones. Mary deleted the photos and took the devices away.
As therapy progressed, Mary told Williams that Jane "had shut herself in the closet and said that daddy didn't do it and everyone is just trying to take him away." At a later visit, Williams was reading a book to Jane about trauma and the emotions that can accompany it. Williams testified:
"A. There was a point in the book, um, that was talking about feeling worried and uncomfortable and how, uh, home was supposed to be fun and she said, 'That's how I felt with my daddy.' I asked her to tell me more about that and she stated that, 'He used to put his wee wee in my coochie.' "Q. Okay. And did you kind of have her elaborate on that? "A. I did. Um, I drew a picture of a body and it's just a—it's just an outline, almost looks like a gingerbread person, um, and asked her to show me where the wee wee and coochie are and pointed to the area—and she pointed to the area between the legs for both. She, uh, she went on to talk a little bit more about where her mom would be and where it occurred. "Q. Okay. And where did she say her mom would be?
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"A. She said her mommy was at work. "Q. And where did she say that it would occur? "A. It occurred in mommy's bedroom on mommy's bed. "Q. Okay. Did she say anything about whether [John] was present at the time? "A. She did. "Q. And what did she say? "A. Uh, I asked her where [John] was and she said that he was in the living room and then she said, 'Daddy said to get out of the bedroom.' "Q. And did you also ask her if it happened one time, more than one time, or something else? "A. I did. I asked if it happened one time or more. And she said, 'A lot of times when my mommy go to work.'"
Williams recalled that Jane then said that she "didn't know that daddies [wer]en't supposed to do that."
Jane went on to disclose Moliere's actions to Williams three additional times.
Williams noted that Jane's disclosures gradually became less detailed and specific. But Williams explained that this was typical of child victims.
Williams also testified about the therapy she provided to John. Williams recalled that once, while reading John a book about boundaries and safety, John told her, "Daddy isn't proud. Actually, he doesn't even know I told on him." Williams noted that John felt "happy" for telling on Moliere. She noted that John said, "Daddy is busted. I have been keeping that a secret from him for a long, long time. I just was waiting for the perfect time." Williams asked John to tell her what he saw. Williams testified that John told her:
"He would peek through a little crack in the door and he said in quotes, 'There's a crack, not in the middle of the door, but when you close it, there is a crack right where you close it, so you can see what is happening.' And when I asked what he saw, he stated, 'I'm not going to tell someone again. All I'm going to say is that daddy was hurting [Jane]. And she was saying nothing. Not a single thing popped out of her mouth.'"
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"I asked him about being out of the room and he stated that his daddy kicks him out of the room and makes him sleep in the living room, but he said in quotes, 'But that time, I sneaked and saw what he was doing.' And he said that this would happen late at night when mommy was at work."
Moliere called his son, Dwight (pseudonym), as a witness. Dwight testified that he moved in with Moliere and Mary, but when Jane was there, Moliere was not allowed to stay at the residence. Dwight did not see Jane and Moliere together, but he did spend some time with Jane when his dad was not at the house. Dwight testified that he once asked Mary if he could ask Jane about what happened. Dwight stated he then asked Jane if "daddy" really touched her and Jane replied "no." According to Dwight, Mary then told Jane that she knew what "daddy" did and that was the end of the conversation.
Moliere testified in his own defense. He stated that, at the time of trial, he had been married to Mary for a little over four years and was the adoptive father of Jane and John. Moliere testified that he had been disabled since 2007. Moliere discussed his relationship with the children and denied the allegations.
At the conclusion of the trial, the jury found Moliere guilty. The district court sentenced Moliere to a minimum of 25 years in prison.
ANALYSIS
DID THE DISTRICT COURT ERR BY ALLOWING A SUPPORT PERSON AT TRIAL?
Standard of Review
An appellate court reviews the district court's decision to allow a support person to sit with a child witness for an abuse of discretion. State v. Rochelle, 297 Kan. 32, 36, 298 P.3d 293 (2013). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error
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of fact. State v. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Peters, 319 Kan. 492, 497-98, 555 P.3d 1134 (2024).
Discussion
Prior to trial, the State filed a motion to allow Mary to serve as a support person for Jane and John. The district court held a hearing on the motion a few days before trial. The State offered that if a support person was allowed, Mary would be instructed to sit behind the children so that they could not make eye contact. Moliere responded that part of the defense strategy was that Mary had coached Jane's allegations, and her presence during Jane's testimony would be detrimental to that defense. Moliere's allegation of coaching was based on the fact that Jane had recanted her allegations to Camien, the SANE/SART nurse, and on other occasions, when Mary was not present.
The district judge reviewed the evidence, inquired about Jane's age, and granted the State's motion with the caveat that the "[s]upport person is not to speak to the child witness, attempt to disrupt or influence the child in any way, support person is not to make any inappropriate actions or respond to any questions or answers." The district court reasoned that the defense would present evidence of coaching regardless of whether a support person was present and, based on State v. Rowray, 18 Kan. App. 2d 772, 860 P.2d 40 (1993), found it was reasonable to grant the request for a support person. The district court stated that the support person was allowed with restrictions not to
"speak, prompt the victim, or any other manner attempt to disrupt or influence during the trial. So, basically, the support person can walk up with her. Court should make sure there's a chair back and behind the witness out of the way, between the witness and the jury and the witness and anybody else in the front of the courtroom and be quiet. To not make any inappropriate actions or respond—or any reaction to any questions or answers so that basically they're just sitting there. And the victim or the witness in this case would
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just hopefully be comforted by the simple presence of the person and no other interaction is to occur."
At trial, Moliere again objected to Mary serving as a support person. The State explained that preparing Jane to testify without her mother nearby had not been successful. This time, after considering the arguments of counsel and inquiring about Jane's age, a different district judge assigned to conduct the jury trial overruled Moliere's objection.
The trial court judge independently considered Moliere's objection at trial.
Moliere argues on appeal that the district court abused its discretion because the trial court judge did not make an independent analysis of Moliere's objection to the State's motion. Moliere alleges that the trial court judge improperly deferred to the findings from the district court judge who conducted the pretrial conference. Moliere argues that if trial judges "simply defer their discretionary determinations to the ruling of a pretrial judge, it would completely undercut the purpose of our contemporaneous objection rule," and hinder appellate review of whether the district court abused its discretion.
In support of his argument, Moliere cites State v. Stewart, 306 Kan. 237, 262, 393 P.3d 1031 (2017). In Stewart, the Kansas Supreme Court discussed the necessity of a trial court judge considering a contemporaneous objection:
"'The purpose of the [contemporaneous objection] rule is to avoid the use "tainted evidence [and thereby] avoid possible reversal and a new trial." If a contemporaneous trial objection to a pretrial ruling is deemed necessary to avoid the reversible admission of tainted evidence, a corollary to the rule would logically require the trial judge's informed decision on the merits of the objection. Otherwise, without an actual reconsideration of the pretrial ruling, the contemporaneous objection rule would not accomplish our stated purpose.' [Citations omitted.]" Stewart, 306 Kan. at 264.
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The facts concerning Moliere's argument are not in dispute. Following voir dire, Moliere's counsel renewed his objection to Mary sitting in the courtroom as a support person for Jane. By that point, the State had clarified that John would no longer need a support person. Both parties made arguments to the trial court judge. The State argued that Jane would not be able to testify without her mother in the courtroom. The State also described the safeguards that would be explained to Mary along with a cautionary instruction that would be given to the jury. Moliere argued that Mary was "an endorsed witness, is the mother of this alleged victim and, is not a neutral party and we believe that it could very likely influence the validity of the testimony by [Jane]."
The district court noted that it was aware of the cautionary instruction from the pretrial conference based on Rochelle, 297 Kan. 32. The district court also inquired about Jane's age. After argument and follow up questions, the district court ruled that it would not disturb the order from the pretrial conference. The trial court judge stated:
"I will not change Judge Fowler's orders. The mother may accompany [Jane].
She will sit behind her to her left. If I see anything that runs afoul of your instructions to [Mary], I will interrupt the proceedings and we will take a recess. I'll clear the courtroom and have a discussion with her."
Here, Moliere's argument fails because the record reflects the trial court did independently determine the issue on the merits. The trial court judge heard the objection, listened to the arguments of the parties, reviewed and expounded on the cautionary instruction, and determined that it agreed with the findings of the district court at the pretrial conference. Neither the pretrial judge nor the trial court judge provided a lengthy ruling. But it is clear the trial court judge reviewed the evidence and independently concluded a support person was reasonable. The district court did not abuse its discretion because the record reflects the trial court judge made an independent determination.
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The district court did not abuse its discretion by failing to investigate Moliere's coaching claim.
Moliere also asserts that the trial court abused its discretion by failing to investigate whether Jane was coached. Moliere asserts the trial court "abused its discretion by failing to conduct any investigation or inquiry into the claim of coaching— an error of law based upon a failure to fulfill its legal duty."
Moliere cites State v. Dayhuff, 37 Kan. App. 2d 779, 797, 158 P.3d 330 (2007) in support of his argument that the district court was required to do more to investigate his allegations of coaching. In Dayhuff, a panel of this court considered a situation where a person in the courtroom allegedly made gestures and possibly coached the witness. The defendant brought the alleged behavior to the district court's attention by seeking a mistrial after the witness' testimony. 37 Kan. App. 2d at 796. The panel noted:
"Once Dayhuff brought it to the trial court's attention that an individual had been gesturing to H.D. and possibly coaching her testimony, the trial court had the responsibility to initiate an investigation to ensure that H.D.'s testimony had not been influenced by the individual's actions and that the jury had not been affected by the conduct." 37 Kan. App. 2d at 797.
Dayhuff is easily distinguished. Moliere makes no claim that Mary in any way acted to coach Jane at trial. Dayhuff involves a claim of actively coaching a witness while the witness is testifying at trial, not an unsupported allegation that the support person has previously coached the witness.
Moliere's argument is also unsupported by the record. Both the pretrial judge and trial judge reviewed the State's motion, heard arguments from the parties, asked questions of the parties, and made rulings that included ways to caution the jury as well as Mary. Moreover, Moliere did not provide either judge with evidence, other than his own beliefs,
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to support his claim Jane was coached by Mary. While Moliere pointed to some instances where Jane was inconsistent depending on Mary's presence, there were also instances when Jane confirmed the sexual assault outside of Mary's presence. Importantly, Mary told Jane's therapist that Jane had been inconsistent with her statements and had recanted. We do not find the facts of this case created a responsibility for the trial court judge to inquire further.
Moliere alternatively argues that the duty a judge has to inquire about a conflict of interest a defendant may have with criminal defense counsel is similar to the duty a judge has to inquire about possible coaching. Moliere cites State v. McDaniel, 306 Kan. 595, 395 P.3d 429 (2017) for support. In McDaniel, the defendant argued he was entitled to a new preliminary hearing and trial because he was denied conflict-free counsel at his preliminary hearing when his attorney refused to make an argument suggested by the defendant. 306 Kan. at 605-06. Based on these circumstances, the Kansas Supreme Court found the district court had a duty to inquire:
"McDaniel had a right to effective assistance of counsel during all critical stages of his criminal proceedings under the Sixth Amendment to the United States Constitution. And this carries 'a correlative right to representation that is unimpaired by conflicts of interest or divided loyalties.' State v. Pfannenstiel, 302 Kan. 747, 758, 357 P.3d 877 (2015). The district court is charged with ensuring this right is honored, so when there is an articulated statement of attorney dissatisfaction, it is the district court's responsibility to inquire. See 302 Kan. at 760, 357 P.3d 877." 306 Kan. at 606.
Moliere provides no legal support for the idea that the duty to inquire about conflict-free counsel under the Sixth Amendment means a judge has a duty to investigate an unsupported allegation of witness-coaching. "Failure to support a point with pertinent authority or show why a point is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue." State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020). Moliere's argument is not based on a Sixth
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Amendment violation, and we fail to see the applicability of Moliere's argument. To the contrary, the record does not reflect any evidence of witness-coaching other than Moliere's unsupported allegations. The jury was presented evidence of each of Jane's inconsistencies and nonetheless found Moliere guilty. It is not the role of this court to reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Hayden, 281 Kan. 112, 132, 130 P.3d 24 (2006). We find no merit in Moliere's argument that the district court was obliged to further investigate his allegations of coaching.
A reasonable person could agree with the district court's decision not to investigate Moliere's coaching claims and to allow a support person.
Moliere also argues that the trial court judge erred because "no reasonable person would agree with the district court's decision to conduct no investigation." He also claims that the use of a support person was unreasonable based on the possibility of coaching in the case.
We again note that neither the pretrial judge nor the trial court judge was presented with any evidence that Mary actually coached Jane, either before or during trial. Moliere's evidence was that he had identified instances where Jane recanted, and those instances occurred when Mary was not present. But Moliere's argument ignores the evidence from the record that shows Jane also made statements outside Mary's presence that Moliere sexually assaulted her. As the party who bears the burden of proof, Moliere has failed to show that no reasonable person would agree with the district court's decision to cease further inquiry into Moliere's claims. Peters, 319 Kan. at 497-98.
Moreover, a reasonable person could agree with the district court's decision to allow a support person in this case. Both Rochelle, 297 Kan. 32, and Rowray, 18 Kan. App. 2d 772, examine the use of a support person for a child witness. In Rochelle, the
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defendant was charged with rape and other crimes against his 5-year-old niece. The district court allowed a school counselor to sit with the child at trial. Though the counselor had been instructed to remain silent, the counselor interrupted to clarify the child's testimony. Defense counsel did not object but asked to approach the bench. 297 Kan. at 33-35.
On appeal, Rochelle argued that the district court should make certain findings of need before permitting a comfort person for a witness. The Kansas Supreme Court held "the district court is in the best position to determine on a case-by-case basis whether a comfort person is appropriate. In doing so, we decline to require district courts to make specific findings of substantial need before permitting a comfort person to accompany a child witness on the stand." 297 Kan. at 42. The court also provided a list of factors the district court may consider:
"(1) the age of the witness, although we decline to set an age limit; (2) the argument for and against the use of a support person and whether the defendant has had an opportunity to suggest alternatives; (3) the choice of the comfort person and whether it is someone related to the child, which may lessen any appearance of prejudice; (4) the logistics of where the support person is seated, whether beside, behind, or completely away from the child but still in the courtroom so that his or her presence is less obvious; (5) the availability of items that could make the courtroom more comfortable without the support person, including a child-size witness chair or the use of child-friendly terminology during direct and cross-examination; (6) a cautionary instruction provided up front to the jury directing it to disregard the comfort person and to not permit the person's presence to influence credibility determinations; and (7) a cautionary instruction provided to the comfort person directing the person not to speak, gesture, or otherwise make any indication that he or she approves or disapproves of the child's testimony.
"The above list of suggested factors is not intended to be exclusive or mandatory and should not prevent a court from considering other relevant factors in a particular case." 297 Kan. at 42-43.
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In Rowray, the mother of two child victims was allowed to sit near the children as each testified, after being instructed that she could not interfere in any manner. Rowray argued "this procedure unfairly enhanced the credibility of the children's testimony." 18 Kan. App. 2d at 773. The panel found "Rowray's right to a fair and impartial trial was not violated, nor did the trial court abuse its discretion when it allowed the mother of the two minor witnesses to sit behind them as they testified at trial." 18 Kan. App. 2d at 778.
In the present case, Moliere argued at the pretrial conference and again at trial that Jane was coached by her mother, Mary. Moliere argued that the only times Jane denied the allegations was when her mother was not present. Moliere provided no other argument or evidence that Jane was coached for the court to review.
It is true that Jane's statements did change on several occasions. In addition to Jane's statements to the SANE/SART nurse, on one occasion Jane spoke to her grandmother and said that the incident did happen, but then stated, "[M]aybe daddy didn't do it" followed by "[y]es, my daddy did do it." And Jane recanted to her mother. But the evidence in the record also reflects that Jane described what happened to her on several occasions without her mother present. And at trial, Jane testified about what happened to her and did not recant. The evidence reflects that Jane's story did change, but there is no evidence linking the inconsistencies to any action taken by Mary.
The record also reflects that during Jane's therapy intake appointment, Mary shared with Williams that Jane had gone back and forth about the incident and seemed confused. At another appointment, Mary reported that Jane "had shut herself in the closet and said that daddy didn't do it." The fact that Mary voluntarily shared this information to Williams runs contrary to Moliere's argument that Mary was coaching Jane.
While the factors in Rochelle are not mandatory, it is clear the trial court followed those suggestions. The trial court inquired about the age of the witness and the support
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person's relationship to the child. The district court was careful to seat Mary where Jane could not see her. It issued a cautionary instruction to the jury, and Mary was informed of what was expected of her.
The trial court did not abuse its discretion in granting the State's motion to allow Mary in the courtroom as a support person during Jane's testimony.
WAS THE STATE OBLIGATED TO CORRECT JOHN'S TESTIMONY?
Moliere's second issue on appeal concerns John's testimony. Moliere alleges that the prosecution failed to correct John's perjured testimony, violating Moliere's right to due process.
Standard of Review
The State's failure to correct perjury is considered a constitutional violation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In State v. Warrior, 294 Kan. 484, 510, 277 P.3d 1111 (2012), the Kansas Supreme Court held "that a trial court's determination as to the existence of a Brady violation is reviewed de novo with deference to a trial court's findings of fact, but the trial court's denial of the defendant's motion for new trial is reviewed under an abuse of discretion standard." The defendant bears the burden of proving that perjured testimony was given. See State v. Betts, 272 Kan. 369, 381, 33 P.3d 575 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007).
Discussion
K.S.A. 21-5903(a) defines perjury as "intentionally and falsely: (1) Swearing, testifying, affirming, declaring or subscribing to any material fact upon any oath or affirmation legally administered in any cause, matter or proceeding before any court,
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tribunal, public body, notary public or other officer authorized to administer oaths." Moliere asserts that the testimony at issue was a false statement related to a material fact. He points out that John's testimony "tied his ability to perceive the alleged assault to his outlandish claim that he was a robot who can scan through walls."
Moliere's allegation concerns the following exchange, which began with questions from the prosecutor to John on redirect-examination:
"Q. When she told you to tell about the bad things, did she tell you that you need to tell about the bad things? "A. Yes, but, but I can't because I forgot. "Q. Okay. Have people—strike that. How did you know that Tony and sister were done? "A. Um, well, not only I can launch drones, but I can also scan. "Q. Okay. "MS. BRINKER: I have nothing further, Judge.
"THE COURT: Mr. Meier.
"RECROSS-EXAMINATION BY MR. MEIER:
"Q. I want to make sure I understood that. You said you can also scan? "A. Yes. "Q. What's that mean? "A. Like, well, um, like, you know how robots can scan stuff? "Q. Yeah, pretty cool. "A. Yeah. "Q. Okay. How much of you is a robot or you just have things—you can do things like a robot? "A. Well, um— "Q. I'm teasing you, [John]. I'm sorry, I thought you'd laugh at me. Here's what I—so, now we understand what a robot can do and how they can scan, how can you scan; what do you mean by that?
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"A. Well, first of all, I do have something in secret. Do you promise to not tell anyone else? "Q. Promise. "A. Okay. But the people that's in here is the only persons that can know. No one tell anyone about this. I'm half-human and half-robot, because that's what, literally, my bones is circled of money. Like, you know how robots can only be made out of, of metal? "Q. Yeah, the ones I've seen. "A. Well, guess what? "Q. What? "A. Um, like, I have a pretend computer, but it looks like a real one and, like, I, I done some research on some, on a pretend robot and that pretend robot was mine and it worked. I found out that you—if you, you can make yourself a pickaxe like in Minecraft and a shovel, I found out that you can also dig down to where you can also find stone and real life. And, also, oh, you know how you can find ores like iron, gold, diamonds, and emeralds in Minecraft and even meteorites, you can also find that in real life, even you can find bedrock. "Q. Okay. All right.
"MR. MEIER: Your Honor, I have nothing further. Thank you. "THE COURT: Anything else, Ms. Brinker? "MS. BRINKER: No, Judge."
Both sides mentioned John's testimony in closing. The State, when discussing John's testimony, stated, "Our half human/half robot that came in and testified. He told his mom what he saw." Moliere's attorney, in closing, stated, "[John], looking through the door or perhaps with his half-robot scan or his invisible, imaginary drones, said that daddy was on top of sissy and he put where he pees in where she poops."
We note that Moliere did not object to John's testimony. After John responded to the prosecutor's question that he could scan and launch drones, the State ended its examination of John. It was Moliere's attorney that expounded on John's response with additional questions and commented on John's responses in closing argument. In general,
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when a defendant has invited error, he or she cannot complain of the error on appeal. See State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012). But we need not consider the merits of Moliere's claim because he has failed to preserve it for our review.
Moliere failed to preserve his issue for appeal.
In its brief, the State points out that Moliere did not object to John's testimony at trial and argues that Moliere's argument is therefore not properly preserved for appeal. Whether an issue has been preserved for appeal is a question of law, subject to unlimited review. State v. Scheetz, 318 Kan. 48, 58, 541 P.3d 79 (2024).
K.S.A. 60-404 provides:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection."
Moreover, "[t]he contemporaneous objection rule requires each party to make a specific and timely objection at trial in order to preserve evidentiary issues for appeal." State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
It is undisputed that Moliere failed to object to John's testimony at trial. Moliere asks us to consider whether an exception to the preservation rule applies. Those exceptions include: (1) A newly asserted claim involves only a question of law arising on proved or admitted facts, determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or prevent the denial of fundamental rights; or (3) the district court decision was right for the wrong reason. State v. Dunn, 304 Kan. 773, 819, 375 P.3d 332 (2016). Moliere argues this court may address the issue as a "question of law arising on proved or admitted facts." State v. Phillips, 299 Kan. 479, 493, 325 P.3d
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1095 (2014). He argues that alternatively, we may address the issue under the theory that it is "necessary to serve the ends of justice or to prevent the denial of fundamental rights." Phillips, 299 Kan. at 493.
We need not consider whether an exception applies, because pursuant to K.S.A.
60-404, Moliere was required to make a contemporaneous objection. Moreover, even if an exception applies, our decision to consider Moliere's issue remains prudential. "The decision to review an unpreserved claim under an exception is a prudential one. Even if an exception would support a decision to review a new claim, this court has no obligation to do so." State v. Gray, 311 Kan. 164, Syl. ¶ 1, 459 P.3d 165 (2020).
Here, we are not persuaded to consider Moliere's claim. It is clear from the record that Moliere's counsel willingly participated in the exchange with John he now challenges, even commenting on the exchange in closing argument. We see no reason to reach the merits of Moliere's argument under the facts of this case.
Moreover, because we find no error in this case, we need not address Moliere's final argument that cumulative error denied him a fair trial.
Affirmed.